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In a recent decision rendered on 28 August 2014 (decision 4A_74/2014, published in the official record of the decisions of the Swiss Federal Supreme Court as ATF 140 III 477), the Swiss Federal Supreme Court clarified the grounds for setting aside interim awards, i.e. awards in which the arbitral tribunal does not decide on the claims before it, but only determines a preliminary question in the affirmative, so that the arbitral proceedings may continue (for example, by accepting its jurisdiction or deciding that the claim is not time-barred).

Under Swiss law, interim awards are, in principle, not directly open to challenge. An exception is provided for in Art. 190(3) of the Swiss Private International Law Act (PILA) which states that such awards are subject to challenge within 30 days from their notification on the grounds of irregular composition of the arbitral tribunal (Art. 190(2)(a) PILA) and wrongful acceptance of jurisdiction (Art. 190(2)(b) PILA). By contrast, if a party wants to challenge an interim award on the basis of the other grounds for challenge of arbitral awards provided for under Swiss law, i.e. ultra or infra petita (Art. 190(2)(c) PILA), violation of due process (Art. 190(2)(d) PILA) or public policy (Art. 190(2)(e) PILA), it has to wait until the arbitral tribunal renders a final award (by which it declares the claim inadmissible or grants/rejects it, whether fully or in part) or a partial award (by which the arbitral tribunal decides only on some of the claims submitted to it or only on a part of the total amount of a claim) before being able to obtain an indirect review of the interim award in the context of a challenge against the final or partial award.

The Swiss Federal Supreme Court had the opportunity to clarify the above principle in the decision at hand, which concerned a Luxembourg company and a Turkish individual which had entered into several share purchase agreements, providing for conflicting dispute resolution clauses. The Turkish individual initiated arbitration before the Basel Chamber of Commerce under the Swiss Rules of International Arbitration on the basis of the arbitration clause contained in some of the agreements. The Luxembourg company challenged the jurisdiction of the Basel Chamber of Commerce, arguing principally that the parties had not agreed to arbitrate their dispute since they had provided for dispute resolution clauses in favour of ordinary courts in the other agreements, and alternatively that the arbitration clause on which the Turkish individual based its request provided for ad hoc arbitration.

The sole arbitrator appointed by the Basel Chamber of Commerce accepted his jurisdiction in an interim award. The Luxembourg company moved to set aside the award before the Swiss Federal Supreme Court arguing that the sole arbitrator had wrongly accepted jurisdiction and had violated the parties’ right to be heard and the principle of equal treatment (due process). The Swiss Supreme Court upheld the sole arbitrator’s reasoning and, thus, dismissed the challenge, clarifying inter alia that, notwithstanding the wording of Article 190(3) PILA, the grounds set forth in letters (c), (d) and (e) of Art. 190(2) PILA (i.e. ultra or infra petita, violation of due process and public policy) can also be invoked to set aside a preliminary or interim award provided that they are strictly limited to issues concerning directly the composition or the jurisdiction of the arbitral tribunal (i.e. letters (a) and (b) of Art. 190 (2) PILA).


Luca Beffa is a member of the Dispute Resolution team at Baker & McKenzie in Geneva. He represents domestic and foreign entities in arbitration and litigation proceedings, often involving cross-border disputes. He also advises on commercial litigation and sports law. Mr. Beffa is well-versed in complex international arbitration matters. He has participated in ICC, UNCITRAL and ICSID arbitrations, as well as arbitrations governed by the Swiss Rules of International Arbitration. He likewise acts as arbitrator and mediator, and assists in litigation matters involving commercial, banking, M&A and cross-border transactions, as well as in sports related matters. Luca Beffa can be reached at and + 41 22 707 98 30.